EARLE and REPATRIATION COMMISSION

[2009] AATA 5

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 5

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3672

VETERANS' APPEALS DIVISION		)
Re		GARY TEARLE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member
Dr I S Alexander, Member

Date7 January 2009

PlaceSydney

Decision The decision under review is affirmed.

.......................[Sgd]........................                   

Ms N Isenberg, Senior Member            

CATCHWORDS

VETERANS’ ENTITLEMENTS – operational service – eligible defence service – claim that osteoarthrosis of both shoulders and rotator cuff syndrome were war or defence caused – consideration of Statement of Principles – rate of pension payable to veteran -  the decision under review is affirmed

Veterans’ Entitlements Act 1986 ss 9, 13(1), 23, 24, part IV, ss 70, 196, 120(1), 120(3), 120(4) and 120A

Statement of Principles – Instrument No 31 and 32 of 2005 concerning osteoarthrosis

Statement of Principles – Instrument No 39 and 40 of 2006 concerning rotator cuff syndrome

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Keeley (2000) 98 FCR 108

Repatriation Commission v Gorton (2001) 110 FCR 321

Lees v Repatriation Commission (2002) 125 FCR 331

Bull v Repatriation Commission (2001) 66 ALD 271

Hardman v Repatriation Commission (2004) 82 ALD 433

Elliott v Repatriation Commission (2002) 73 ALD 377

Repatriation Commission v Bey (1997) 79 FCR 364

Youngnickel v Repatriation Commission [2004] FCA 1691

Repatriation Commission v Hill (2002) 69 ALD 581

Lees v Repatriation Commission (2002) 125 FCR 331

Re Robertson and Repatriation Commission (1998) 50 ALD 668

Repatriation Commission v Cornelius[2002] FCA 750

Cavell v Repatriation Commission (1988) 9 AAR 534

REASONS FOR DECISION

7 January 2009

  Ms N Isenberg, Senior Member

  Dr I S Alexander, Member

Background

1.   Mr Tearle served in the regular Royal Australian Navy between 10 January 1961 and 10 January 1981.  His “operational service” as defined in the Veterans’ Entitlement Act 1986 (“the VE Act”) was as follows:

(a)Operational service in Vietnam from 15 February 1971 to 4 March 1971;

(b)Operational service in Vietnam from 26 March 1971 to 8 April 1971;

(c)Operational service in Vietnam from 13 May 1971 to 1 June 1971;

(d)Operational service in Vietnam from 20 September 1971 to 16 October 1971;

(e)Operational service in Vietnam from 26 October 1971 to 18 November 1971;

(f)Operational service in Vietnam from 24 November 1971 to 17 December 1971;

(g)Operational service in Vietnam from 14 February 1972 to 9 March 1972.

2.   Mr Tearle also rendered eligible defence service as defined in Part IV of the VE Act from 7 December 1972 to 10 January 1981.

3.   Mr Tearle contends that his claimed conditions of osteoarthrosis of both shoulders and his rotator cuff syndrome either arose out of or were materially contributed to by his eligible service.  In general terms he contended that his shoulders were injured playing service sport.

4.   The following conditions have already been accepted as related to service:

a)    Solar Skin Damage

b)    Malignant Neoplasm of the Skin

c)    Localised Osteoarthrosis affecting both knees

d)…